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Judgment
Prashant Kumar Mishra, J.
This appeal is directed against the judgment of conviction and sentence dated 3-9-1998 passed by the 3rd Additional Sessions Judge, Durg, in ST No. 1/98, whereby the learned 3rd Additional Sessions Judge has convicted & sentenced the appellants in the following manner:
Appellant No. 2-Gaindlal Sahu has expired on 27-12-2010 and, as such, the appeal on his behalf has abated, as recorded by this Court in the order sheet dated 21-1-2014. Therefore, the appeal is considered for examining the legality and validity of the conviction & sentence imposed upon the appellant No. 1-Sarveshwar Kumar Kaushik only.
The accused persons have allegedly committed the murder of one Binjwarin Bai (since deceased) prior to 11.00 am of 8-7-1997. Shri Singh, Deputy General Manager (Security) of Bhilai Steel Plant (for short ''BSP'') telephonically informed the Station House Officer, Police Station Bhatti, District Durg, at 14.00 hours on 8-7-1997 that a woman is lying dead at the place of occurrence and her hands & legs are tied. After receiving this telephonic information, two Constables were sent to the place and found that the deceased Binjwarin is lying dead in front of centering plant of BSP. This merg intimation was recorded vide Ex. P/20 and was later on registered as merg No. 23/97 vide Ex. P/3. The concerned police sent notice to the witnesses vide Ex. P/1 for conducting dead body inquest and the naksha panchayatnama was prepared vide Ex. P/2. During the dead body inquest, the suspicion arose that the deceased has been murdered and thereafter, First Information Report (FIR) (Ex. P/4) was registered at 20.20 hours on 8-7-1997 against the unknown persons. The Investigating Officer obtained samples of bloodstained soil & plain soil, as also the broken bangles from the place of occurrence vide Ex. P/5. One lady''s sleeper of left foot was recovered from the place of occurrence vide Ex. P/6. Spot map was prepared vide Ex. P/7. The attendance register of the labours containing the attendance record of the deceased was seized vide Ex. P/8 from the management of the BSP. Certificate issued by the Assistant General Manager of Water Supply Department, BSP, certifying posting of the accused persons as Chargeman/Spare Chargeman & Operator-cum-Technician, respectively was recovered vide Ex. P/9.
Memorandum statement of appellant No. 1 was recorded on 10-7-1997 vide Ex. P/10 wherein he disclosed that the iron strip used for committing the murder of the deceased, bed sheet used for moving the dead body and the wrapper of the bulb have been concealed in the bushes near Eucalyptus tree on the embankment of the tank. Bloodstained bed sheet, wrapper of bulb and iron strip length 19.5", width 2", thin part 1 1/2" having sharp edges were recovered vide Ex. P.11 from the place indicated in the memorandum. Shirt, full pant, baniyan & underwear of the appellant No. 1 were recovered vide Ex. P/12. Memorandum statement of accused Gaindlal Sahu (now dead) was recorded vide Ex. P/13 in which he disclosed that the bicycle and Tiffin belonging to the deceased have been thrown near RMP II canteen cycle stand and pursuant to this memorandum, cycle over which one plastic bag containing one steel Tiffin wherein name of the deceased was encrypted and inside the Tiffin one steel bowl was also kept wherein also name of the deceased was encrypted, were recovered vide Ex. P/14. Shirt, full pant & baniyan of the accused Gaindlal Sahu (now dead) were recovered vide Ex. P/15. From Gaindlal one daily work register was recovered vide Ex. P/16 wherein an endorsement was made at 20.30 hours on 7-7-1997 to the effect that pump Nos. 1 & 2 of the pump house No. 47 have tripped and this was informed to Chawda Sahab. Similarly, 8 broken pieces of red colour bangles, right foot sleeper of the deceased, one lady''s hair pin, one black thread necklace, 5 currency notes of Rs. 2/- denomination and one gate pass of the appellant No. 1 containing his photograph were recovered from the place of occurrence vide Ex. P/17. Dead body of the deceased was sent for postmortem to the District Hospital, Durg, vide Ex. P/18. However, the Medical Officer of the District Hospital, Durg, opined that since it seems to be a suspicious death, it is referred to Medical College, Raipur, Department of Forensic Examination for expert opinion and needful. Postmortem was conducted by Dr. Sanjay Kumar Dadu (PW-16), who gave his report (Ex. P/25). Dr. Dadu opined that the death was due to asphyxia as a result of strangulation, other injuries were also found present over the body caused by hard, sharp and hard & blunt object. Duration of death was within 1-3 days since postmortem examination i.e. 10-7-1997.
Wearing apparels of the deceased together with vaginal slide and artificial ornaments worn by the deceased were recovered vide Ex. P/19. The seized articles were sent for FSL examination vide Ex. P/22, which were received by the Regional FSL, Raipur vide Ex. P/23 and the report of the FSL was proved vide Ex. P/24. The bed sheet and the wrapper of bulb recovered at the instance of the appellant No. 1 marked as Articles G-1 & G-2 were found bloodstained. Similarly, the full pant recovered from the appellant No. 1 marked as H-2 and underwear marked as Article I were found to be bloodstained. Gate pass in the name of the appellant No. 1 containing his photograph, which was recovered from the place of occurrence was marked as Article E4 and on this Article also blood was found. In the underwear recovered from the appellant No. 1 marked as Article I, in the petticoat of the deceased marked as Article K3 and the vaginal slide marked as Article L sperms were found.
The prosecution recorded the case diary statement of witnesses and submitted the charge sheet against the accused persons. Accused Sarveshwar was charged for committing the offence under Sections 376, 302 & 201 read with Section 34 of the IPC whereas accused Gaindlal Sahu (now dead) was charged for committing the offence u/s 201 read with Section 34 of the IPC.
During trial the prosecution examined 16 witnesses to bring home the charges. Accused Sarveshwar abjured the guilt and stated that he has been falsely implicated. He examined one defence witness namely; Dilip Kumar Chaudhary (DW-1). On the basis of evidence available on record, the trial court has convicted and sentenced the accused persons for the charges framed against each of them.
We have heard learned counsel appearing for the parties and perused the record.
It has been argued by the learned senior counsel appearing for the appellant No. 1 that the chain of circumstantial evidence is not complete; evidence of Anjali Bai (PW-11) is contradictory and she is not a reliable witness; the defence witness has proved that at the time of occurrence the accused persons were working in the water treatment plant of the BSP along with the defence witness; the memorandum & seizure as well as the expert evidence in the form of FSL report cannot form basis of conviction, therefore, the appellant No. 1 Sarveshwar deserves to be acquitted. In support of his contention, learned senior counsel placed reliance upon the decisions rendered by the Supreme Court and High Courts in Dev Prakash Vs. State of M.P., , The The State of Punjab Vs. Bhajan Singh and Others, Sakharam Shankar Bansode Vs. State of Maharashtra, , Kavita Vs. State of Tamil Nadu, Manthuri Laxmi Narsaiah Vs. State of A.P., Majendran Langeswaran Vs. State (NCT of Delhi) and Another, State of Maharashtra Vs. Kondiba Tukaram Shirke, and Babudas Vs. State of M.P.,
Per contra, learned appearing for the State would support the impugned judgment.
There is no ocular version to the crime and the case of the prosecution is based on circumstantial evidence. Before proceeding to marshal the evidence, we would like to keep in mind the principles laid down by the Supreme Court for proving the guilt of appellant in cases where the prosecution is relying on circumstantial evidence to bring home the charges.
In Sharad Birdhichand Sarda Vs. State of Maharashtra, , the Supreme Court has underlined the conditions, which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-152 as under:
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, where the following observations were made:
certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and must be'' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
We shall first discuss as to whether the prosecution has been able to prove the presence and attendance of accused Sarveshwar and deceased Binjwarin Bai in the water treatment plant at the relevant time and date.
Premraj Buddhiraja (PW-7) is the Assistant General Manager of BSP at the relevant time. According to this witness, both the accused persons were working under him and their duty on the date of occurrence i.e. 7-7-1997 was from 2.00 pm to 10.00 pm and both were present on their duties for which he has issued a certificate (Ex. P/9). In his cross-examination, this witness stated that on that day one Shri Chawada was the Shift In-charge.
Narendrakumar Verma (PW-9) also works in the water supply department of BSP. He stated that the deceased was engaged in cleaning and serving drinking water to the employees in the water supply department.
P.S. Thakur (PW-12) is the Assistant General Manger of BSP. He also stated that accused Sarveshwar was working in the water supply department as Chargeman and the deceased Binjwarin Bai was also working in the water supply department, however, she died after merely 3-4 days of her work while she was working with Mishra contractor. This witness also stated that both the accused persons have attended their duties in "B" shift i.e. from 2.00 pm to 10.00 pm on 7-7-1997.
Vidyanand (PW-6) is the Supervisor of Mishra Contractor. He has proved the attendance register (Ex. P/8) maintained by the Contractor for registering the attendance of the personnel/labourer in the water treatment plant. According to this witness, on the date of occurrence deceased Binjwarin Bai was assigned duty in the water supply department and was relived from day''s work at 4.30 pm. Her attendance has been recorded on 7-7-1997.
Anjali Bai (PW-11) also works under Mishra Contractor along with the deceased Binjwarin Bai. She has also proved that on the date of incident she and the deceased were together coming back after completing the day''s work.
S.P. Mishra (PW-14) is the contractor with whom the deceased Binjwarin Bai as well as Anjali Bai (PW-11) were working. He stated that Vidyanand (PW-6) is his Supervisor who was responsible for taking the attendance of the personnel/labourer.
Apart from the above witnesses of the prosecution, the defence witness namely; Dilip Kumar Chaudhary (DW-1) also stated that after hearing about the death of deceased he along with both the accused had gone to see the dead body.
On the basis of statements made by contractor S.P. Mishra (PW-14) and his supervisor Vidyanand (PW-6), it is proved that the deceased was working with them and was assigned the duty of cleaning and serving drinking water in the water treatment plant and she attended the duty on the date of incident.
Similarly, the officers of the BSP who were the In-charge of the water supply department i.e. Premraj Buddhiraja (PW-7) and P.S. Thakur (PW-12) have stated that the accused Sarveshwar had attended duty in the water supply department on the date of incident for which certificate (Ex. P/9) was issued.
We shall now proceed to determine as to-whether prosecution has been able to prove that the appellant is guilty of committing the crime and therefore, he has rightly been convicted by the trial court?
Since the case is based on circumstantial evidence, we shall examine the circumstances proved by the prosecution to ascertain as to whether it is the accused Sarveshwar only who could have committed the crime and thereafter, the accused Gaindlal Sahu (now dead) assisted him in concealing the evidence of crime and the hypothesis of innocence of the accused is completely excluded.
As discussed above and found proved by this Court, accused Sarveshwar and the deceased Binjwarin Bai were working in the water supply department of the BSP and both of them have attended the duties on the date of incident, therefore, the first circumstance about the presence of accused Sarveshwar in the water supply department at the time of occurrence is established.
To prove that accused Sarveshwar was seen near the place of incident at the relevant time, the prosecution has produced Anjali Bai (PW-11), aged about 22 years, who was working with the deceased Binjwarin Bai, aged about 30 years, in the water supply department of BSP. In her Court statement, this witness stated that after completing the day''s work, she and the deceased were coming back. When they reached near pump house, the deceased asked her to wait and thereafter, the deceased went inside the pump house while this witness was waiting outside. After some time accused Sarveshwar came and informed that the deceased has fallen on account of skidding of sleeper and he requested this witness with folded hands that she should not inform this to anybody. This witness further stated that she made statement to the Police and further that accused Gaindlal Sahu (now dead) was also present with accused Sarveshwar.
Anjali Bai (PW-11) makes the following statement in paras 2 & 3 of her deposition:
On a close scrutiny of the statement of Anjali Bai (PW-11) extracted and quoted above, it would clearly appear that in the first part she said that accused Sarveshwar stated her that she should not inform anybody that the deceased had fallen inside the pump house; then she stated that the deceased met her on the way, when they were together coming back and reached near the pump house the deceased asked her to wait and the deceased went inside the pump house and after some time accused Sarveshwar rushingly came out from the pump house and stated that the deceased had fallen inside the pump house because of skidding of slipper and stated before her with folded hands that this should not be informed to anybody.
On a reading of the case diary statement (Ex. D/1) and the Court statement, it appears that though there are minor contradictions in the statement of Anjali Bai (PW-11), but the presence of accused persons; the entry of deceased inside the pump house; the fact of her waiting outside the pump house for some time; coming out of the accused after some time and informing her about the fact that the deceased has fallen down, which is a little sort of saying that she has died; and the statement made by accused Sarveshwar that this fact should not be disclosed to anybody else finds place in both the statements. Thus, the basic prosecution case about the presence of this witness just outside the place of occurrence, as also the fact that she had seen the deceased in the company of accused Sarveshwar soon before her death is clearly proved.
In Thoti Manohar Vs. State of Andhra Pradesh, the Supreme Court has held that minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper-technical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored. {See State of U.P. Vs. M.K. Anthony, , Mehmood Alam Tariq and Others Vs. State of Rajasthan and Others, Rammi @ Rameshwar etc. Vs. State of Madhya Pradesh, , State of Himachal Pradesh Vs. Lekh Raj and Another, , Laxman Singh Vs. Poonam Singh and Others, Dashrath Singh Vs. State of U.P.,
Any prudent person reading the statement of Anjali Bai (PW-11) can safely conclude that accused Sarveshwar and the deceased were together inside the pump house and this was seen by this witness {Anjali Bai (PW-11)}. Otherwise, there was no occasion or reason for accused Sarveshwar to inform this witness that the deceased has fallen inside the pump house because of skidding of slipper and this should not be informed to any one. Thus, this Court is of the considered opinion that the statement of Anjali Bai (PW-11) is the evidence of last seen together, which is an important piece of circumstantial evidence proved against the appellant.
The next piece of circumstantial evidence against the accused Sarveshwar is his memorandum statement (Ex. P/10). Pursuant to his memorandum statement, one bloodstained bed sheet, one paper wrapper of electric bulb and one iron strip of length 19.5", width 2", thin part 1 1/2" having sharp edges were recovered near Eucalyptus tree on the embankment of the tank situate at road leading to Maroda gate of BSP. Alakh Ram (PW-8) & Lekh Ram Sahu (PW-13) are the witnesses to the disclosure statements and the seizure memos.
Alakh Ram (PW-8) supports the disclosure statement (Ex. P/10) made by accused Sarveshwar by stating that the appellant had made the statement and thereafter, the recovery of the above mentioned articles were made from the indicated place vide Ex. P/11. He also supports the seizure of underwear; full pant, shirt & baniyan from accused Sarveshwar vide Ex. P/12. This witness has also proved the memorandum statement of accused Gaindlal Sahu (now dead) vide Ex. P/13. Pursuant to the said memorandum statement, cycle over which one plastic bag containing one steel Tiffin wherein name of the deceased was encrypted and inside the Tiffin one steel bowl was also kept wherein also name of the deceased was encrypted, were recovered vide Ex. P/14. Shirt, full pant & baniyan of the accused Gaindlal Sahu (now dead) were recovered vide Ex. P/15. From Gaindlal one daily work register was recovered vide Ex. P/16 wherein an endorsement was made at 20.30 hours on 7-7-1997 to the effect that pump Nos. 1 & 2 of the pump house No. 47 have tripped and this was informed to Chawda Sahab. Similarly, 8 broken pieces of red colour bangles, right foot sleeper of the deceased, one lady''s hair pin, one black thread necklace, 5 currency notes of Rs. 2/- denomination and one gate pass of the appellant No. 1 containing his photograph were recovered from the place of occurrence vide Ex. P/17.
In the cross-examination, Alakh Ram (PW-8) has clarified that he was summoned by the police to pump house No. 47, however, nothing has been asked from this witness that accused Sarveshwar had not made any disclosure statement in his presence or that the recoveries made from accused Sarveshwar were not made from the disclosed place. It appears, after the recoveries were made the paper work may have been done in the police station.
Lekh Ram Sahu (PW-13) admits his signature on the memorandum statement of accused Sarveshwar (Ex. P/10), however, he denies that any such memorandum statement was made by the accused persons to the police in his presence, but in para 2 of his examination-in-chief he categorically supports the prosecution by saying that one slipper, iron strip and bed sheet were recovered near the pump house. He also stated that another sleeper, two rupees currency notes were also seized near the pump house and that the police personnel had taken him and Alakh Ram (PW-8) to the place where from the articles were seized.
On a reading of statements of Alakh Ram (PW-8) & Lekh Ram Sahu (PW-13), it is fully established and proved that the accused Sarveshwar has made memorandum statement to the police and consequent thereto articles were seized from him. Thus, this circumstantial evidence is also proved against him.
Other circumstance is in the form of FSL report. The following are the list of articles sent for chemical examination:
In the FSL report (Ex. P/24) bloodstains were found on the following Articles:
In addition to the above, Article ''I'' underwear of the accused Sarveshwar; Article ''K3'' petticoat of the deceased; and Article ''L'' vaginal slide obtained from the private parts of the deceased were sent for sperm examination. FSL report (Ex. P/24) has found presence of human sperm on these three articles.
Despite presence of bloodstains on the articles recovered from the accused Sarveshwar having been found in the FSL report, more particularly his full pant, underwear and finding of sperm in his underwear and the petticoat of the deceased as also of vaginal slide, the accused Sarveshwar has not offered any explanation regarding presence of bloodstains and human sperm when he was asked questions regarding this evidence in his statement recorded u/s 313 of the Cr. P.C. Thus, the appellant''s connectivity in committing the crime on the basis of his memorandum statement, consequent seizure and report of FSL is proved and the finding recorded by the trial Court is borne out from the evidence on record.
Accused Sarveshwar has also been convicted for committing rape. As earlier stated there is only circumstantial evidence against him, therefore, to examine the validity of his conviction u/s 376 of the IPC, this Court is again required to fall back on the circumstantial evidence available in this regard.
In the dead body inquest (Ex. P/2) it was found that out of 4 buttons, 3 buttons of the blouse of the deceased were broken. During observation of private parts of the body of the deceased by the women inquest witnesses, white material was found near vagina.
Dr. Sanjay Kumar Dadu (PW-16), who has conducted postmortem on the body of the deceased, has not made any specific opinion about the commission of rape before committing murder, however, he prepared vaginal slide and referred the same for FSL examination.
This Court has already found that seizure of articles made from the accused has been fully proved. Article ''I'' is the underwear of accused Sarveshwar, whereas Article ''K3'' is the petticoat of the deceased and Article ''L'' is the vaginal slide. In the FSL report (Ex. P/24) human sperms have been found on these articles i.e. ''I'', ''K3'' & ''L''.
If the observation made by the inquest witnesses and the report of FSL are read together, it appears the deceased was subjected to forcible sexual intercourse before committing her murder. It appears that during this act, the deceased might have resisted because of which she was done to death due to asphyxia as a result of strangulation.
In Joseph Poulo Vs. State of Kerala, the Supreme Court was dealing with a case where the accused was convicted for committing the offence under Sections 302, 376 & 392 of the IPC. It was also based on circumstantial evidence. In para 15 of the judgment, the Supreme Court dealt with the evidence with respect to the charge u/s 376 of the IPC and after having found that there was no mark of violence or resistance on the body of the deceased and the dhoti of the accused contained no stains of blood or semen, the Supreme Court acquitted him of the charge u/s 376 of the IPC.
However, in the case in hand, it was found during inquest that 3 buttons of the blouse as also bangles of the deceased were broken. Sperms were found on the petticoat and vaginal slide of the deceased and importantly sperms and bloodstains were also found on the underwear of the accused Sarveshwar. Therefore, it appears the deceased resisted when she was subjected to sexual intercourse, which led to breaking of buttons of the blouse and bangles of the deceased and subsequently, she was murdered. Thus, the decision of the Supreme Court in Joseph S/o. Kooveli Poulo (supra) is distinguishable on facts.
On the basis of scrutiny of evidence adduced by the prosecution, the following circumstances have been proved against accused Sarveshwar:
� On the date of incident i.e. 7-7-1997 accused Sarveshwar was posted as Chargeman in the water supply department of BSP and attended the duties in ''B'' shift i.e. from 2.00 pm to 10.00 pm.
� On the date of incident Anjali Bai (PW-11) and the deceased were coming back in two separate bicycles at 5.00/5.30 pm and the deceased went inside the pump house, while Anjali Bai (PW-11) was waiting outside. After some time, accused Sarveshwar came out and informed Anjali Bai that the deceased has fallen down on account of skidding of slipper and, as such, the appellant was last seen together with the deceased.
� Accused Sarveshwar has made disclosure statement to the police vide Ex. P/10. Consequent to his memorandum statement bloodstained bed sheet, wrapper of bulb and iron strip length 19.5", width 2", thin part 1 1/2" having sharp edges were recovered from the place indicated in the memorandum, vide Ex. P/11. His shirt, full pant, baniyan & underwear were also recovered vide Ex. P/12.
� During FSL examination blood stains were found on the Articles-G1 (bed sheet), G2 (wrapper), H2 (full pant), I (underwear), which were recovered at the instance of accused Sarveshwar.
� In the FSL examination, bloodstains & human sperms were found on Article ''I'' underwear of the accused and sperms were found on Article ''K3'' petticoat of the deceased and Article ''L'' vaginal slide.
On the basis of above circumstantial evidence, this Court is of the considered opinion that the chain of circumstantial evidence is so established that it is consistent only with the hypothesis of guilt of the accused and they are not explainable on any other hypothesis except that the accused is guilty. The circumstances proved by the prosecution are of a conclusive nature and tendency and they exclude every possible hypothesis except the one to be proved i.e. the guilt of the accused. The chain of circumstantial evidence found proved by the Court shows that in all human probability the act has been done by the accused and it does not leave any reasonable ground for drawing conclusion consistent with the innocence of the accused. The trial Court has not committed any illegality or irregularity in convicting the appellant-Sarveshwar under Sections 376, 302 & 201 read with Section 34 of the IPC. For the foregoing, the appeal is dismissed. Conviction and sentence imposed on appellant Sarveshwar Kumar Kaushik under Sections 376, 302 & 201 read with Section 34 are hereby maintained. He is on bail. His bail bonds are cancelled and he be taken into custody forthwith to serve out the remaining sentence imposed upon him.